Full Text:Volume 1.1G

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Contents

DRUG OFFENCES

Drug Possession


Drug Possession
s. 4 of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Hybrid
Summary (<1g res. or 10g mj)
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Prov. Court only (Sch II)
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum varies
Maximum varies
Indictable Dispositions
Avail. Disp. same as summary
Minimum varies
Maximum varies
Reference
Offence Elements
Sentence Digests

This concerns possession of drugs for personal use. For charges related to possession for the purpose of trafficking, see Drug Trafficking.

Overview

Offences relating to drug possession are found in Part I of the Controlled Drugs and Substances Act relating to "Offences and Punishment".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 4(4)(a) CDSA [Schedule II] Indictable Offence(s) OK Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 4 CDSA [Schedule I, III and IV] Indictable Offence(s) OK Symbol.png OK Symbol.png OK Symbol.png

Offences under s. 4(4)(a) [Schedule II] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.

Release

When charged under s. 4 [all Schedules], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 4 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Under s. 8 of the Controlled Drugs and Substances Act, the Court is not required to impose a mandatory minimum sentence unless notice is given before plea.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

PART I
Offences and Punishment
Particular Offences
Possession of substance

4 (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I [Sch I], II [Sch II] or III [Sch III].

Obtaining substance

(2) No person shall seek or obtain

(a) a substance included in Schedule I

[Sch I], II [Sch II], III [Sch III] or IV [Sch IV], or

(b) an authorization to obtain a substance included in Schedule I

[Sch I], II [Sch II], III [Sch III] or IV [Sch IV] from a practitioner, unless the person discloses to the practitioner particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days.

Punishment

(3) Every person who contravenes subsection (1) [possession of substance] where the subject-matter of the offence is a substance included in Schedule I [Sch I]

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.
Punishment

(4) Subject to subsection (5), every person who contravenes subsection (1) [possession of substance] where the subject-matter of the offence is a substance included in Schedule II [Sch II]

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

(5) [Repealed, 2018, c. 16, s. 195]

Punishment

(6) Every person who contravenes subsection (1) [possession of substance] where the subject-matter of the offence is a substance included in Schedule III [Sch III]

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.
Punishment

(7) Every person who contravenes subsection (2) [obtaining substance from practitioner]

(a) is guilty of an indictable offence and liable
(i) to imprisonment for a term not exceeding seven years, where the subject-matter of the offence is a substance included in Schedule I

[Sch I],

(ii) to imprisonment for a term not exceeding five years less a day, where the subject-matter of the offence is a substance included in Schedule II

[Sch II],

(iii) to imprisonment for a term not exceeding three years, where the subject-matter of the offence is a substance included in Schedule III

[Sch III], or

(iv) to imprisonment for a term not exceeding eighteen months, where the subject-matter of the offence is a substance included in Schedule IV

[Sch IV]; or

(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

(8) [Repealed, 2018, c. 16, s. 195]

1996, c. 19, s. 4; 2018, c. 16, s. 195.
[annotation(s) added]

CDSA


Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Controlled Drugs and Substances Act.

Proof of the Offence

Proving drug possession under s. 4(1) CDSA should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed a substance (knowledge, consent, control)
  5. Substance is a Control Substance under the CDSA, Schedule I, II or III (certificate of analysis, chain of possession, amounts found)
  6. possession of Substance was not authorized under the CDSA regulation

Proving obtaining a substance under s. 4(2) CDSA should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit sought or obtained a substance;
  5. the substance is a controlled substance under Schedule I, II, III or IV or an "authorization to obtain a substance included in Schedule I, II, III or IV"
  6. the culprit seek to obtain "from a practitioner"
  7. the person does not disclose to the practitioner the "particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days."

Interpretation of the Offence

The offence described in s. 4(2)(a) is oftne known as "double doctoring".

Knowledge of Drug

As part of the proof of possession, the accused must have knowledge of the narcotic substance.[1] It is not necessary however to be aware of the exact type of drug, rather only be aware that it is illegal.[2]

Simply having knowledge of a package containing a "steroid" may be insufficient to infer knowledge of the substance as being a steroid listed in the CDSA Schedules.[3]

  1. R v Blondin (1970) 2 CCC (2d) 118 (BCCA), 1970 CanLII 1006 (BC CA), per Davey CJ
  2. R v Burgess, 1969 CanLII 467 (ON CA), [1970] 3 CCC 268 (ONCA), per Brooke JA
  3. e.g. R v States, 2017 NSSC 276 (CanLII), per Wood J

Jurisdiction

Where the drug is under Schedule II, the offence is an absolute jurisdiction offence and must be tried in provincial court.[1]

  1. see s. 553

Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 4 [possession of drug]

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences

Penalties by Category

The maximum penalties are broken down as follows:

Schedule Amount Obtained From Prior Convictions Maximum Section
I Any Anyone None 7 years jail (Indictment) / $1,000 or 6 months jail 4(3)(a) or (b)(i)
I Any Anyone One or more 7 years jail (Indictment) / $2,000 or 1 year jail 4(3)(a) or (b)(ii)
I Any practitioner None 7 years jail (Indictment) / $1,000 or 6 months jail 4(7)(a)(i) or (b)(i)
I Any practitioner One or more 7 years jail (Indictment) / $2,000 or 1 year jail 4(7)(a)(i) or (b)(ii)
II > 1g resin or 30g cannabis Anyone None 5 years less a day jail (Indictment) / $1,000 or 6 months jail 4(4)(a) or (b)(i)
II > 1g resin or 30g cannabis Anyone One or more 5 years less a day jail (Indictment) / $2,000 or 1 year jail 4(4)(a) or (b)(ii)
II =< 1g resin or 30g cannabis Anyone Any $1,000 or 6 months jail 4(5)
II Any practitioner None 5 years less a day jail (Indictment) / $1,000 or 6 months jail 4(7)(a)(ii) or (b)(i)
II Any practitioner One or more 5 years less a day jail / $2,000 or 1 year jail 4(7)(a)(ii) or (b)(ii)
III Any Anyone None 7 years jail (Indictment) / $1,000 or 6 months jail 4(6)(a) or (b)(i)
III Any Anyone One or More 7 years jail (Indictment) / $2,000 or 1 year jail 4(6)(a) or (b)(ii)
III Any practitioner None 3 years jail (Indictment) / $1,000 or 6 months jail 4(7)(a)(iii) or (b)(i)
III Any practitioner One or more 3 years jail (Indictment) / $2,000 or 1 year jail 4(7)(a)(iii) or (b)(ii)
IV Any practitioner None 18 months jail (Indictment) / $1,000 or 6 months jail 4(7)(a)(iv) or (b)(i)
IV Any practitioner One or more 18 months jail (Indictment) / $2,000 or 1 year jail 4(7)(a)(iv) or (b)(ii)

Schedule I: Heroin, Cocaine, etc.

Heroin

Heroin is considered amongst the most dangerous drugs. It is treated very seriously and will often attract the toughest penalties.

Cocaine


Schedule II: Marijuana, Hash, etc.

First-time offenders will typically get discharges or fines. Probation can be given where the background of the offender suggests that a rehabilitation is in order.

Where there is a prior related record there can be short jail sentences given.

Schedule III: Amphetamines, Hallucinogens, etc.

Schedule IV: Barbiturates, Steroids, etc.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See Also

Drug Production


Drug Production
s. 7(2)(a), (a.1), (b), (c) or (d) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Indictment (Sch I, II)
Hybrid (Sch III, IV)
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 18 months incarceration (Sch III)
1 year incarceration (Sch IV)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 7 years incarceration (Sch I, Mj)

10 years incarceration (Sch III)
3 years incarceration (Sch IV)

Life (Sch I, II except Mj)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to drug production are found in Part I of the Controlled Drugs and Substances Act relating to "Offences and Punishment".

Pleadings

Offences under s. 7(2)(a) or (a.1) are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 7(2)(c) or (d) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release

When charged under s. 7(2)(a), (a.1) or (b), the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

When charged under s. 7(2)(c) or (d), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Under s. 515(6)(d) offences under s. 7(2)(a) [Schedule I] or (a.1) [Schedule II, non-cannabis] are subject to a reverse onus on bail where it is "an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence".

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 7 OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under 7 are designated offences eligible for wiretap under s. 183.

Under s. 8 of the Controlled Drugs and Substances Act, the Court is not required to impose a mandatory minimum sentence unless notice is given before plea.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Production of substance

7 (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III, IV or V.

Punishment

(2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;
(a.1) if the subject matter of the offence is a substance included in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment
(i) for a term of one year if the production is for the purpose of trafficking, or
(ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;
(b) [Repealed, 2018, c. 16, s. 197]
(c) if the subject matter of the offence is a substance included in Schedule III or V,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(d) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
Factors

(3) The following factors must be taken into account in applying paragraphs (2)(a) and (a.1):

(a) the person used real property that belongs to a third party in committing the offence;
(b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;
(c) the production constituted a potential public safety hazard in a residential area; or
(d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.

1996, c. 19, s. 7; 2012, c. 1, s. 41; 2017, c. 7, s. 5; 2018, c. 16, s. 197.

CDSA


Possession, sale, etc., for use in production of or trafficking in substance

7.1 (1) No person shall possess, produce, sell, import or transport anything intending that it will be used

(a) to produce a controlled substance, unless the production of the controlled substance is lawfully authorized; or
(b) to traffic in a controlled substance.
Punishment

(2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, II, III or V,
(i) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months; and
(b) if the subject matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term of not more than three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term of not more than one year.

2011, c. 14, s. 1; 2017, c. 7, s. 6.

CDSA

Notice

8 The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.
2012, c. 1, s. 42.

CDSA


Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Controlled Drugs and Substances Act.

Proof of the Offence

Proving drug production under s. 7 CDSA should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit produces a substance;
  5. the substance is a Controlled Substance under the CDSA;
  6. the culprit knows the criminal nature of the substance.

Interpretation of the Offence

The gravamen of the offence is the "active participation in the growing of prohibited plants."[1]

  1. R v Ngo, 2009 BCCA 301 (CanLII), per Rowles JA, at paras 3, 52
    R v Powell (1983), 1983 CanLII 246 (BC CA), 9 CCC (3d) 442 (BCCA), per Esson JA

Production Defined

Definitions

2. (1) In this Act,
...
“produce” means, in respect of a substance included in any of Schedules I to IV, to obtain the substance by any method or process including

(a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or
(b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained, and includes offer to produce;


...

CDSA

Lesser Included Offence

The offence of possession of drugs is not an included offence.[1]

  1. R v Powell, 1983 CanLII 246 (BC CA), (1983), 9 CCC (3d) 442 (BCCA), per Esson JA

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 7 CDSA

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences
Maximum Penalties

Offences under s. 7(2)(a) [Sch I], (a.1), and (b) are straight indictable. The maximum penalty is life [s. 7(2)(a) or non-cannabis 7(2)(a.1)] or 14 years incarceration [s. 7(2)(b)].

Offences under s. 7(2)(c) [Sch III] and (d) [Sch IV] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration [Sch III] or 3 years incarceration [Sch IV]. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration [Sch III] or 12 months incarceration [Sch IV].

Minimum Penalties

For offences under s. 7(2)(a) [Sch I], (a.1), and (b) there is a mandatory minimum penalty of See table.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 7(2)(a) [Sch I], (a.1), and (b) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 7(2)(c) [Sch III], (d) [Sch s. any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

Offences under s. 7(2)(a) [Sch I], (a.1), and (b) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

For offences under s. 7(2)(c) [Sch III], (d) [Sch IV], all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Non-commercial operations are considered the least serious manifestations of this offence.[1]

Constitutionality

The mandatory minimums found under s. 7(2)(b)(iii), (iv), (v) and (vi) are unconstitutional as they violate s. 12 of the Charter and cannot be justified under s. 1 of the Charter.[2]

  1. R v Koenders, 2007 BCCA 378 (CanLII)
  2. R v Serov, 2017 BCCA 456 (CanLII), per Stromberg-Stein JA
    R v McGee, 2017 BCCA 457 (CanLII), per Stromberg-Stein JA

Factors

  • size of the enterprise
  • level of sophistication
  • evidence of fortification
  • presence of weapons
  • presence of children
  • threats to health and safety
  • theft of utilities
  • degree of participation (crop-sitter, worker or owner)
  • intended use of drugs (personal vs commercial)

Ranges

see also: Drug Production (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 7(2)(a), (a.1), (b), or (c)
Weapons Prohibition Orders s. 7(1)
  • For offences under s. 7(1) that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

References

Importing and Exporting Drugs


Importing and Exporting Drugs
s. 6(3) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. varies
Minimum None
Maximum varies
Indictable Dispositions
Avail. Disp. varies
Minimum None
Maximum varies
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to Importing and Exporting Drugs are found in Part I of the Controlled Drugs and Substances Act relating to "Offences and Punishment".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 6(3)(a) Indictable Offence(s) N/A OK Symbol.png X Mark Symbol.png (under 14 years max)
s. 6(3)(b) Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 6(3)(c) Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 6(3)(a) are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 6(3)(b) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release

When charged under s. 6(3)(a), the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

When charged under s. 6(3)(b), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Under s. 515(6)(d) offences under s. 6(3)(a) [Schedule I or II] are subject to a reverse onus on bail where it is "an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence".

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 6 OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 6 are designated offences eligible for wiretap under s. 183.

Under s. 8 of the Controlled Drugs and Substances Act, the Court is not required to impose a mandatory minimum sentence unless notice is given before plea.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Importing and exporting

6 (1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

Possession for the purpose of exporting

(2) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if
(i) the offence is committed for the purposes of trafficking,
(ii) the person, while committing the offence, abused a position of trust or authority, or
(iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence;
(a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;
(b) if the subject matter of the offence is a substance included in Schedule III, V or VI,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) if the subject matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

1996, c. 19, s. 6; 2012, c. 1, s. 40; 2017, c. 7, s. 4.

CDSA

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Controlled Drugs and Substances Act.

Proof of the Offence

Proving importing and exporting drugs under s. 6(1) CDSA should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit imported into Canada or exported from Canada a substance;
  5. the substance was included in Schedule I, II, III, IV, V or VI.
  6. it was not "authorized under the regulations";

Proving possession for the purpose of importing and exporting drugs under s. 6(2) CDSA should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed a substance;
  5. the substance was included in Schedule I, II, III, IV, V or VI.
  6. the purpose was to export from Canada;
  7. it was not "authorized under the regulations";

Interpretation

Offence Completed

The act of importation is completed once the accused clears customs.[1]

Duress Defence

The defence of duress requires that the trier-of-fact consider safe avenues of escape, including the ability to seek the assistance of border services.[2]

  1. R v Foster, 2018 ONCA 53 (CanLII) , 360 CCC (3d)213 (ONCA), per Watt JA
  2. Foster, ibid.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 6(3)(a) CDSA N/A life incarceration
s. 6(3)(b) CDSA Summary Election 18 months incarceration
s. 6(3)(c) CDSA Summary Election 1 year incarceration
s. 6(3)(b) CDSA Indictable Election 10 years incarceration
s. 6(3)(c) CDSA Indictable Election 3 years incarceration

Offences under s. 6(3)(a) are straight indictable. The maximum penalty is life incarceration.

Offences under s. 6(3)(b) and (c) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration under s. 6(3)(b) or 3 years incarceration under s. 6(3)(c). If prosecuted by summary conviction, the maximum penalty is 18 months incarceration under s. 6(3)(b) or 1 year jail under s. 6(3)(c).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 6(3)(a) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 6(3)(b), (c) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

For offences under s. 6(3)(b) and (c), all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Offences under s. 6(3)(a) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

If convicted under s. 6(3)(a) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Constitutionality

There is some suggestion that s. 6(3)(a) is overbroad for failing to distinguish between "hard" and "soft" drugs, and so conditional sentences are available.[1]

  1. R v Williams, 2017 ONCJ 666 (CanLII), per Renwick J

Ranges

see also: Importing and Exporting Drugs (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 6(3)(a), (a.1) or (b)
Weapons Prohibition Orders s. 6(1) or (2)
  • For offences under s. 6(1) or (2) that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

References

Drug Trafficking


Drug Trafficking
s. 5(1), (2) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Indictment / Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. varies by Schedule
Minimum varies by Schedule
Maximum varies by Schedule
Indictable Dispositions
Avail. Disp. varies by Schedule
Minimum varies by Schedule
Maximum varies by Schedule
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to drug trafficking are found in Part I of the Controlled Drugs and Substances Act relating to "Offences and Punishment".

Pleadings

Offences under s. 5 [Schedule I] are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 5(3)(a.1) [Schedule II] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.

Offences under s. 5 [Schedule III or IV] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release

When charged under s. 5 [Schedule I or II], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

When charged under s. 5 [Schedule III or IV], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Under s. 515(6)(d) offences under s. 5(3)(a) [Schedule I or II] are subject to a reverse onus on bail where it is "an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence".

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. xxx OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 5 CDSA are designated offences eligible for wiretap under s. 183.

Offences under s. 5 CDSA are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

Under s. 8 of the Controlled Drugs and Substances Act, the Court is not required to impose a mandatory minimum sentence unless notice is given before plea.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Trafficking in substance

5 (1) No person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.
...
1996, c. 19, s. 5; 2012, c. 1, s. 39; 2017, c. 7, s. 3; 2018, c. 16, s. 196.

CDSA

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Controlled Drugs and Substances Act.

Proof of the Offence

Proving Possession for the Purpose of Trafficking under s. 5 CDSA should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. Possession of Substance (Knowledge, consent, control)
    1. must have knowledge of the illegal nature of the substance
  5. Substance is a Control Substance under the CDSA (certificate of analysis, chain of possession, amounts found)
  6. the culprit knew of (or held a belief as to) the nature of the substance
  7. Possession of Substance was not authorized
  8. The culprit intended to traffic the Substance

Proving Trafficking should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was trafficking in a substance
  5. the substance was Schedule I to V Controlled Substance
  1. R v Chan, 2003 CanLII 52165 (ON CA), (2003), 18 C.R. (6th) 322, per Simmons JA at 30 to 32

Interpretation of the Offence

See also: Drug Trafficking

Where the drug is under Schedule II, the offence is an absolute jurisdiction offence and must be tried in provincial court.[1]

  1. see s. 553

Typical Defences

Sentencing

For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences

History

See Also

References

Drug Trafficking, Schedule I


Drug Trafficking, Schedule I
s. 5(1), (2) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum Life
Reference
Offence Elements
Sentence Digests

Overview

See Drug Trafficking (Offence)

Legislation

Trafficking in substance

5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and
(i) to a minimum punishment of imprisonment for a term of one year if
(A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code,
(B) the person used or threatened to use violence in committing the offence,
(C) the person carried, used or threatened to use a weapon in committing the offence, or
(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or
(ii) to a minimum punishment of imprisonment for a term of two years if
(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,
(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or
(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;

...

Interpretation

(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.
...
1996, c. 19, s. 5; 2012, c. 1, s. 39.

CDSA

Sentencing Principles and Ranges

For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences
Maximum Penalties

Offences under s. 5(3)(a) are straight indictable. The maximum penalty is life.

Minimum Penalties

For offences under s. 5(3)(a) or (a.1) there is a mandatory minimum penalty of 1 year or 2 years incarceration.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 5(3)(a) N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 5(3)(a) [with aggravating factors] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Gravity

There is a distinction made in law between hard drugs (such as cocaine) and soft drugs (such as marijuana).[1]

The societal costs of drug abuse and trafficking are significant.[2] They include the effects on health care, lost productivity and financial loss due to enforcement.

Many courts have spoken to the societal harm of drug trafficking.[3] Trafficking and use of cocaine has a close connection with violent crime.[4]

Schedule I drugs, including cocaine, heroin, and methamphetamines, are "highly addictive and inflict great harm on individuals and society. Trafficking in these drugs is rightly considered a serious offence". [5]

When dealing with Schedule I drugs including cocaine, the emphasis must be on dedication and general deterrence.[6]

The destructive nature of methamphetamines “mirror those of two other hard drugs, heroin and cocaine”.[7]

Fentanyl is considered one of the "most highly addictive and dangerous drugs" and so objectives in sentencing should focus on general deterrence and denunciation.[8]

Disposition

Trafficking in cocaine is typically a jail sentence. [9] This is particularly true in "dial-a-dope" schemes which are a form of commercial trafficking.[10]

Exceptional Circumstances

It has been suggested that only in "exceptional circumstances" should a sentence be outside of the normal range of jail.[11] These circumstances can take the form of the existence of "multiple mitigating factors".[12]

Factors

Smuggling any amount of drugs into a correctional facility is an aggravating factor.[13]

  1. R v Tuck, 2007 ONCA 495 (CanLII), [2007] OJ No 2626 (C.A.), per curiam, at para 2
    R v Wellington, 1999 CanLII 3054 (ON CA), (1999), 132 CCC (3d) 470 (Ont. C.A.), per Feldman JA, at p. 476
    R v Cunningham, 1996 CanLII 1311 (ON CA), (1996), 104 CCC (3d) 542 (Ont. C.A.), per curiam, at p. 547
  2. Pushpanathan v Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 SCR 982, per Bastarache J, at pp. 1039-1040
  3. see R v Aitkens, 2004 BCCA 411 (CanLII), per Newbury JA, at para 7 ("Drug trafficking has become a blight in our society")
    R v Beaudry, 2000 ABCA 243 (CanLII), (2002), 37 C.R. (5th) 1 (Alta. C.A.), per Berger JA, at paras 158 and 165 ("The damage to the community from trafficking in cocaine is substantial, and extends well beyond the offender and his prospective customers ... it contributes to a variety of other offences, with the potential for extremely serious health and economic consequences. Drug trafficking remains a serious problem in Canada.")
    R v Woolcock, [2002] OJ No 4927(*no CanLII links) , at para 8 (“There is no dispute that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.”)
    R v Daya, 2007 ONCA 693 (CanLII), 227 CCC (3d) 367, per Moldaver and LaForme JJA, at para 18
    R v Harris, 2008 CanLII 23493 (ON SC), [2008] OJ No 1976 (S.C.J.), per DM Brown J, at paras 21-22{{{3}}}
    R v Johnson, 2010 BCCA 57 (CanLII), [2010] BCJ No. 301 (C.A.), per Bennett JA, at para 29 ("correctly took into account the serious effect that cocaine has on fellow citizens and [the offender's] role in spreading this 'disease'.")
    R v Sem (S.), 2005 MBQB 208 (CanLII), per MacInnes J, at paras 37 to 38
  4. R v Hamilton, 2004 CanLII 5549 (ON CA), (2004), 72 O.R. (3d) 1, per Doherty JA, at para 104
  5. R v Lloyd, 2016 SCC 13 (CanLII), per McLachlin CJ , at para 26
  6. R v Steeves, 2007 NSCA 130 (CanLII)(complete citation pending)
    R v Butt, 2010 NSCA 56 (CanLII) R v Scott, 2013 NSCA 28 (CanLII) R v Oickle, 2015 NSCA 87 (CanLII), at paras 31 and 48
  7. R v Villanueva, 2007 ONCJ 87 (CanLII), per MacDonnell J, at para 27
    see also R v Nguyen, 2011 ONSC 6229 (CanLII), per McWatt J, at para 41 (“The danger of methamphetamine to human life is becoming uncontrovertibly clear.”)
  8. R v Lu, 2016 ONCA 479 (CanLII), per curiam, at para 9
  9. R v Al-Amiri, 2015 NLCA 37 (CanLII), per Barry JA, at para 61
  10. R v Sawatsky, 2007 ABCA 353 (CanLII), per Martin JA
    R v Maskill, (1981), 1981 ABCA 50 (CanLII), 29 A.R. 107, 58 CCC (2nd) 408, per Moir JA, at para 20
    R v Rahime, 2001 ABCA 203 (CanLII), per curiam
  11. R v Peters (R.N.), 2015 MBCA 119 (CanLII), 323 Man.R. (2d) 237, per Monnin JA
    R v Tran (A.), 2015 MBCA 120 (CanLII), per Monnin JA
    R v Racca (R.A.), 2015 MBCA 121 (CanLII), per Burnett JA
  12. Tran, supra, at para 24
    R v Voong (D.M.) et al., 2015 BCCA 285 (CanLII), per Bennett JA, at para 59
  13. R v Taylor, 2013 SKCA 33 (CanLII), per Richards JA, at paras 15, 16

Ranges

See also: Drug Trafficking, Schedule I (Sentencing Cases) and Drug Trafficking, Schedule I, Cocaine (Sentencing Cases)
General Ranges

Sentencing ranges vary between provinces.

In Nova Scotia, an appropriate sentence for trafficking of Schedule I substances will range will typically span from 3 to 5 years. As such, conditional sentences are rarely available.[1]

In Saskatchewan, the range is between 18 months to 4 years for trafficking.[2]

In Newfoundland, trafficking in small quantities of cocaine is a sentence in the range of 6 to 18 months.[3]

It is infrequent that it will go below two years[4] and so will virtually guarantee a federal sentence.[5] There is no fixed minimum, however. There is still significant discretion.[6]

However, it is not unreasonable in certain exceptional circumstances to have sentences below two years.[7] The starting point for commercial trafficking in cocaine in small quantities is three years for most provinces.[8]

In Manitoba, there are several recognized levels of trafficking in cocaine:

  1. Low (street dealer): sentences typically start at less than two years and can range up to four years. [9]
  2. Low-Mid (mere courier): sentences for couriers can be between 3 to 6 years.[10]
  3. Mid (more than mere courier of large quantities): sentences typically range from 5 to 8 years if they are an insider, while couriers are in the range of 3 to 6 years.[11]
  4. High: (multi-kilogram trafficker): sentences typically range from 8 to 12 years[12]

It has been further suggested that “a person who traffics in a sophisticated manner at a kilogram level should, absent significant mitigating factors, expect no less a penalty than 10 years' incarceration. It should not matter whether that drug is cocaine or methamphetamine.” [13]

In Ontario, for possession of "a substantial amount of cocaine for the purpose of trafficking" the range is usually 5 to 5.5 years even with a guilty plea and no record.[14]

The Ontario "normal" range for "someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound [or 453.59 grams] of cocaine".[15]

Trafficking heroin, even in small amounts, will result in federal sentences absent exceptional circumstances.[16]

Small amounts

In Ontario, the range of sentencing for trafficking in small amounts of crack cocaine is 6 months to 2 years less a day.[17]

Mid-range

Manitoba court has stated that the mid-level drug deal has a range of sentence between 7 to 8 years.[18]

Large amounts of Drugs (1kg+)

The range of sentence for trafficking of cocaine in the amounts of 1 kg or more will typically see sentences in the range of 5 years.[19] Larger amounts upward of 3 kg will attract a range of 6 to 8 years.[20] It has also be articulated as "substantial amounts" of cocaine attracting a range of 5 to 8 years.[21]

In Ontario, a first-time offender convicted for being a courier for large amounts of high-grade heroin should expect a range between 12 and 17 years jail absent "exceptional or extenuating circumstances".[22]

Couriers

The drug couriers' job is to transport drugs and protect their bosses from being detected.[23]

  1. R v Knickle, 2009 NSCA 59 (CanLII), per Roscoe JA
    R v Conway, 2009 NSCA 95 (CanLII), per Bateman JA
  2. R v Aube, 2009 SKCA 53 (CanLII), per Smith JA, at para 19
    R v Shawile, 2012 SKCA 51 (CanLII), per Herauf JA
    R v Taylor, 2013 SKCA 33 (CanLII), per Richards JA, at para 14
  3. R v Taylor, 2012 CanLII 1915 (NL SCTD), per Dymond J, at para 12
  4. R v Dawe, 2002 NSCA 147 (CanLII), per Hamilton JA
  5. R v Jamieson, 2011 NSCA 122 (CanLII), per Saunders JA, at para 38
  6. R v Ostertag, 2000 ABCA 232 (CanLII), 266 A.R. 57, per Veit J, at paras 12 to 16
  7. R v Murphy (M.P.), 2011 MBCA 84 (CanLII), per Monnin JA
    R v Panko (D.), 148 Man.R. (2d) 138, 2000 MBCA 45 (CanLII), per Huband JA
    R v Reid (B.A.C.), 1998 CanLII 17760 (MB CA), (1998), 131 Man.R. (2d) 153, per Helper JA
    R v Champagne (D.A.), 2000 MBCA 66 (CanLII) 148 Man.R. (2d) 104, per Helper JA
  8. AB: R v Maskill, (1981), 1981 ABCA 50 (CanLII), 29 A.R. 107, 58 CCC (2d) 408 (C.A.), per Moir J
    R v Rahime, 2001 ABCA 203 (CanLII), 286 A.R. 377, per curiam, at para 26
    R v Marchesi, 460 A.R. 294, 2009 ABCA 304 (CanLII), per curiam, at para 4
    R v McCulloch, 2011 ABCA 124 (CanLII), per curiam, at para 8 - starting point sentence “for commercial trafficking in cocaine in small quantities”
    R v Rainville, 2010 ABCA 288 (CanLII), per Rowbotham JA, at para 6
    R v Chung, 1999 ABCA 86 (CanLII), (1999), 135 AR 351 (CA), 18 WCB (2d) 611, per Fraser CJ
    NS: R v Knickle, 2009 NSCA 59 (CanLII), per Roscoe JA
  9. R v Gilchrist, 2004 MBCA 21 (CanLII), per Freedman JA
    R v Safaye, 2017 MBQB 217 (CanLII), per Greenberg J
  10. R v Rocha, 2009 MBCA 26 (CanLII), per Chartier JA, at paras 61 to 64
    R v Traimany (P.), 2011 MBCA 104 (CanLII), 270 Man.R. (2d) 291, per Chartier JA, at para 3
  11. Rocha, supra, at paras 61 to 64
  12. R v Oddleifson, 2010 MBCA 44 (CanLII), per Chartier JA
  13. R v Grant, 2007 MBQB 13 (CanLII), per Scurfeild J, at para 73
  14. R v Bajada, 2003 CanLII 15687 (ON CA), per Weiler JA, at paras 12 to 14
    R v Ovid, 2016 ONSC 2974 (CanLII), per Campbell J, at para 27
  15. Ovid, ibid., at para 27
    R v Bryan, 2011 ONCA 273 (CanLII), [2011] OJ No 1581, per curiam, at paras 1 to 2
    See also R v Muise, [2007] OJ No 5553 (C.J.) (*no CanLII links) , at para 47, aff'd 2008 ONCA 665 (CanLII), per curiam
    R v Peltier, 2013 ONCA 141 (CanLII), per MacPherson JA, at para 15
    R v Italiano, 2015 ONSC 2216 (CanLII), [2013] OJ No 6459, per O'Marra J, at paras 25 to 31
    R v Feeney, 2015 ONSC 3218 (CanLII), [2015] OJ No 2584, per Garton J, at paras 32 to 40, 44 to 45, 55 to 68
    R v Ceballos, 2015 ONSC 720 (CanLII), [2015] OJ No 536, per MacDonnell J, at paras 2, 5 to 12, 21 to 23
  16. R v Abdella, 2017 ONSC 1002 (CanLII), per O'Marra J, at para 16
    R v Farizeh, [1994] OJ No 2624 (O.C.A.), 1994 CanLII 1145 (ON CA), per curiam
    R v Bahari, [1994] OJ No 2625 (O.C.A.), 1994 CanLII 1425 (ON CA), per curiam
  17. R v Woolcock [2002] OJ No 4927(*no CanLII links) at 15
    R v Madeiros, [2001] OJ No 5664 (Ont. SCJ)(*no CanLII links)
    R v Radassao, 1994 CanLII 779 (ON CA), [1994] OJ No 1990 (ONCA), per Griffiths JA
  18. Rocha, supra, at para 64
    Traimany, supra, at para 3
  19. R v Bajada, 2003 CanLII 15687 (ON CA), (2003), 169 O.A.C. 226 (C.A.), per Weiler JA, at para 13
  20. R v Oraha, 2012 ONSC 1439 (CanLII), per Archibald J, at para 31
  21. R v Rage, 2018 ONCA 211 (CanLII), per curiam, at para 14
  22. R v Sidhu, 2009 ONCA 81 (CanLII), per curiam, at para 14
    R v Deol, 2017 ONCA 221 (CanLII), per Juriansz JA, at para 48
  23. Traimany, supra, at para 3
    Rocha, supra, at para 64

Conditional Sentences

Offences occurring before November 20, 2012 may be eligible for a conditional sentence in certain circumstances. Offences after that date are ineligible under s. 742.1 which prohibits conditional sentences for offences under s. 5(2) of the Controlled Drugs and Substances Act.[1]

In Ontario and Newfoundland, the conditional sentence is available for trafficking in only rare cases.[2] Those who are involved in a “dial-a-dope” operation will generally be sentenced to incarceration.[3]

In Saskatchewan, conditional sentences are available for trafficking in hard drugs. The appropriateness of a conditional sentences depends on several factors:[4]

  1. the sophistication and significance of the offence and the accused's place in it;
  2. the type and quantity of drug;
  3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons;
  4. the need for and the utility of the deterrence which will be provided by the sentence imposed;
  5. the factors relating to the community like the significance of the problem; and,
  6. the age, lack of record and other personal circumstances of the accused.

The Code amendments concerning conditional sentences that came into force on November 6, 2012, prohibit conditional sentence for drug trafficking.

  1. See List of Criminal Code Amendments
  2. R v Ly, 1997 CanLII 2983 (ONCA), per Austin JA at 286 ("will be looked to only rarely in cases of drug trafficking")
    R v Brown, 1997 CanLII 10869 (NL CA), per Marshall JA at 155
  3. R v Sawatsky, 2007 ABCA 353 (CanLII), per Martin JA, at para 4 ("We agree with the Crown that those who organize and manage "dial-a-dope" schemes to traffic in drugs, such as cocaine ... should usually be sentenced to terms of actual incarceration.")
  4. R v Pankewich, 2002 SKCA 7 (CanLII), per Jackson JA, at para 49

Mandatory Minimums

Mandatory minimums were added in November 6, 2012.

The one year mandatory minimum for conviction under s. 5(3)(a)(i)(D) was found to be unconstitutional.[1]

The two year minimum for conviction under s. 5(3)(a)(ii)(B) relating to trafficking in prison.[2]

  1. R v Lloyd, 2014 BCPC 11 (CanLII), per Galati J - violates right against cruel and unusual punishment
  2. R v Carswell, 2018 SKQB 53 (CanLII), per Currie J

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 5(a) CDSA
Weapons Prohibition Orders s. 5 CDSA
  • For offences under s. 5 that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
Circumstance-specific Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.
Other Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

See Also


Drug Trafficking, Schedule II


Drug Trafficking, Schedule II
s. 5(1), (2) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Indictment(>1g Res. or 30g Mj)
Hybrid (<1g Res. or 30g Mj)
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum $1,000 fine or 6 months incarceration
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 5 years less a day incarceration (<3kg)
Life (>3kg)
Reference
Offence Elements
Sentence Digests

Overview

See Drug Trafficking (Offence)

Legislation

Trafficking in substance

5 (1) No person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and
(i) to a minimum punishment of imprisonment for a term of one year if
(A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code,
(B) the person used or threatened to use violence in committing the offence,
(C) the person carried, used or threatened to use a weapon in committing the offence, or
(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or
(ii) to a minimum punishment of imprisonment for a term of two years if
(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,
(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or
(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;
(a.1) [Repealed, 2018, c. 16, s. 196]

...

Interpretation

(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III, IV or V includes a reference to any substance represented or held out to be a substance included in that Schedule.
...
1996, c. 19, s. 5; 2012, c. 1, s. 39; 2017, c. 7, s. 3; 2018, c. 16, s. 196.

CDSA

Schedule VII sets cannabis resin and cannabis marijuana at 3kg.

Schedule VIII sets the cannabis resin at 1 g and cannabis marijuana at 30 g.

Sentencing Principles and Ranges

For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences
Maximum Penalties

Offences under s. 5(3)(a) [exceeding 3 kg] are straight indictable. The maximum penalty is life.

Offences under s. 5(3)(a.1)[not exceeding 3 kg] are straight indictable. The maximum penalty is 5 years.

Minimum Penalties

For offences under s. 5(3)(a) or (a.1) there is a mandatory minimum penalty of 1 year or 2 years incarceration.

The minimum penalties under s. 5(3)(a)(i)(D) has been found to be unconstitutional for violating s. 12 of the Charter.[1]

Available Dispositions

Offences under s. 5(3)(a) [with aggravating factors] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Offenders found trafficking in a Schedule II controlled substance (e.g. Cannabinoids) in an amount greater than 3kg are liable for an indictable offence with a maximum penalty of life in jail. Where the amount is equal or less than 3kg, the offender is liable for an indictable offence with a maximum penalty of 5 years jail.

The primary sentencing principles for these offences involving soft drugs are protection of the public through denunciation and deterrence. [2]

The courts do recognize a distinction between hard and soft drugs, where soft drugs are treated less seriously from hard drugs.

Trafficking in cannabis is typically a sentence of incarceration.[3] There has been a benchmark set by some courts of 6 months.[4]

The upper range of marijuana trafficking is typically 12 months jail and above.[5]

The mid range of sentence is around 12 months on a conditional sentence order.[6] Though will be actual jail in certain cases.[7]

The lower end of the range is around 6 months jail, served either conditionally or on a straight-time basis.[8]

At the very lowest end there will be the rare granting of suspended sentences, fines, or discharges.[9] This usually involves exceptional circumstances such as the offenders position in the community or a benevolent intent behind the act.

Alberta does not have a starting point for sentence on soft drugs. However, the norm is for a sentence of incarceration regardless of prior record with a range between 6 and 12 months.[10]

  1. R v Hofer, 2016 BCSC 1442 (CanLII), per Warren J
  2. R v Butt, 2007 NLTD 57 (CanLII), (2007), 265 Nfld. & P.E.I.R. 98 (N.L.S.C.), per LeBlanc J
    R v Murray, 2012 ABPC 123 (CanLII), per Semenuk J, at para 92
  3. R v Butt and Gallant, 1993 CanLII 7743 (NL CA), (1993), 106 Nfld. & P.E.I.R. 92 (N.L.C.A.), per Marshall JA
  4. R v McKie (1981), 29 Nfld. & P.E.I.R. 181 (P.E.I.C.A.)(*no CanLII links)
  5. R v Chen, 2007 ONCA 230 (CanLII), per curiam (18 months jail)
    R v Nguyen, 2007 ONCA 222 (CanLII), (2007), 227 CCC (6th) 356 (C.A.), per curiam (3:0) (15 months)
  6. R v Imoro, 2011 ONSC 1445 (CanLII), [2011] OJ No 996, per Spies J
    R v Nagtzaam, 2009 ONCJ 596 (CanLII), [2009] OJ No 5409 (O.C.J.), per Hearn J
  7. R v Do, [2002] OJ No 5491 (O.C.J.)(*no CanLII links)
  8. R v Schweitzer, [2000] OJ No 5228 (O.C.J.)(*no CanLII links) (5 months jail)
    R v Stover, [2004] OJ No 3736 (O.C.J.)(*no CanLII links) (4 months CSO)
  9. R v Small, 2001 BCCA 91 (CanLII), per Newbury JA (3:0)
    R v Lucas, 2002 BCPC 268 (CanLII), [2002] BCJ No. 1631 (Prov. Ct.), per Higinbotham J
  10. R v Murray, 2012 ABPC 123 (CanLII), per Semenuk J, at para 93

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
Weapons Prohibition Orders s. 5 CDSA
  • For offences under s. 5 that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.

Under s. 487.04, convictions for trafficking of Schedule II drugs, unlike the other schedules, is not eligible for a secondary designated DNA Order.

Circumstance-specific Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Other Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

See Also


Drug Trafficking, Schedule III

Drug Trafficking, Schedule III
s. 5(1), (2) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 18 months incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See Drug Trafficking (Offence)

Legislation

Trafficking in substance

5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

Punishment

(3) Every person who contravenes subsection (1) or (2)
...

(b) where the subject-matter of the offence is a substance included in Schedule III,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and

...

Interpretation

(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.

Interpretation

(6) For the purposes of paragraph (3)(a.1) and Schedule VII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance.
1996, c. 19, s. 5; 2012, c. 1, s. 39.

CDSA

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences
Maximum Penalties

Offences under s. 5 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Schedule III: Amphetamines, Hallucinogens, etc.

Offenders found trafficking in a Schedule III controlled substance (e.g. Amphetamines and hallucinogens) are liable for either a indictable offence with a maximum penalty of 10 years incarceration or summary offence with a maximum penalty of 18 months in jail.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 5(3)(d)
Weapons Prohibition Orders s. 5
  • For offences under s. 5 that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.

Circumstance-specific Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Other Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

See Also

Drug Trafficking, Schedule IV


Drug Trafficking, Schedule IV
s. 5(1), (2) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 1 year incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 3 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See Drug Trafficking (Offence)

Offence Wording

Trafficking in substance

5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

Punishment

(3) Every person who contravenes subsection (1) or (2)
...

(c) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

...

Interpretation

(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.
...
1996, c. 19, s. 5; 2012, c. 1, s. 39.

CDSA

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences
Maximum Penalties

Offences under s. 5(3)(c) are hybrid. If prosecuted by indictment, the maximum penalty is 1 year. If prosecuted by summary conviction, the maximum penalty is 3 years.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Schedule IV: Barbiturates, Steroids, etc.

Offenders found trafficking in a Schedule IV controlled substance (e.g. Barbiturates and steroids) are liable for either a indictable offence with a maximum penalty of 3 years incarceration or summary offence with a maximum penalty of 12 months in jail.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
Weapons Prohibition Orders s. 5 CDSA
  • For offences under s. 5 that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.

Circumstance-specific Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Other Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

See Also


History of Drug Offences

History

See also: Drug Trafficking (Offence)

Between 1996 and the present, there were no changes to s. 4 CDSA.

Section 5

2017 to present

On May 18, 2017, s. 5 was amended to read as follows:

Trafficking in substance

5 (1) No person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and
(i) to a minimum punishment of imprisonment for a term of one year if
(A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code,
(B) the person used or threatened to use violence in committing the offence,
(C) the person carried, used or threatened to use a weapon in committing the offence, or
(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or
(ii) to a minimum punishment of imprisonment for a term of two years if
(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,
(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or
(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;
(a.1) if the subject matter of the offence is a substance included in Schedule II in an amount that is not more than the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day;
(b) if the subject matter of the offence is a substance included in Schedule III or V,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.


(4) [Repealed, 2012, c. 1, s. 39]

Interpretation

(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III, IV or V includes a reference to any substance represented or held out to be a substance included in that Schedule.

Interpretation

(6) For the purposes of paragraph (3)(a.1) and Schedule VII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance.
1996, c. 19, s. 5; 2012, c. 1, s. 39; 2017, c. 7, s. 3.

CDSA

2012 to 2017

On March 13, 2012, s. 5 of the Controlled Drugs and Substances was amended as follows:

Trafficking in substance

5 (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and
(i) to a minimum punishment of imprisonment for a term of one year if
(A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code,
(B) the person used or threatened to use violence in committing the offence,
(C) the person carried, used or threatened to use a weapon in committing the offence, or
(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or
(ii) to a minimum punishment of imprisonment for a term of two years if
(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,
(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or
(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;
(a.1) if the subject matter of the offence is a substance included in Schedule II in an amount that is not more than the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day;
(b) where the subject-matter of the offence is a substance included in Schedule III,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.


(4) [Repealed, 2012, c. 1, s. 39]

Interpretation

(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.

Interpretation

(6) For the purposes of paragraph (3)(a.1) and Schedule VII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance.
1996, c. 19, s. 5; 2012, c. 1, s. 39.

CDSA

The amended portions of s. 5 is underlined.

1996 to 2012

Trafficking in substance

5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.
'; Punishment (3) Every person who contravenes subsection (1) or (2)

(a) subject to subsection (4), where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;
(b) where the subject-matter of the offence is a substance included in Schedule III,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
Punishment in respect of specified substance

(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day.

Interpretation

(5) For the purposes of applying subsection (3) or (4) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.

Interpretation

(6) For the purposes of subsection (4) and Schedule VII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance.

CDSA

Section 6

2017 to present

Importing and exporting

6 (1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

Possession for the purpose of exporting

(2) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if
(i) the offence is committed for the purposes of trafficking,
(ii) the person, while committing the offence, abused a position of trust or authority, or
(iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence;
(a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;
(b) if the subject matter of the offence is a substance included in Schedule III, V or VI,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) if the subject matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

1996, c. 19, s. 6; 2012, c. 1, s. 40; 2017, c. 7, s. 4.

CDSA


2012 to 2017

On March 13, 2012, s. 6 of the Controlled Drugs and Substances was amended as follows:

Importing and exporting

6 (1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

Possession for the purpose of exporting

(2) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if
(i) the offence is committed for the purposes of trafficking,
(ii) the person, while committing the offence, abused a position of trust or authority, or
(iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence;
(a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;
(b) if the subject matter of the offence is a substance included in Schedule III, V or VI,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) if the subject matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

1996, c. 19, s. 6; 2012, c. 1, s. 40.

CDSA

1996 to 2012

Importing and exporting

6. (1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

Possession for the purpose of exporting

(2) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;
(b) where the subject-matter of the offence is a substance included in Schedule III or VI,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) where the subject-matter of the offence is a substance included in Schedule IV or V,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

CDSA

Section 7

2017 to present

Production of substance

7 (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III, IV or V.

Punishment

(2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;
(a.1) if the subject matter of the offence is a substance included in Schedule II, other than cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment
(i) for a term of one year if the production is for the purpose of trafficking, or
(ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;
(b) if the subject matter of the offence is cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of
(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,
(ii) imprisonment for a term of nine months if the number of plants produced is less than 201 and more than five, the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply,
(iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,
(iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply,
(v) imprisonment for a term of two years if the number of plants produced is more than 500, or
(vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply;
(c) if the subject matter of the offence is a substance included in Schedule III or V,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(d) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
Factors

(3) The following factors must be taken into account in applying paragraphs (2)(a) to (b):

(a) the person used real property that belongs to a third party in committing the offence;
(b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;
(c) the production constituted a potential public safety hazard in a residential area; or
(d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.


1996, c. 19, s. 7; 2012, c. 1, s. 41; 2017, c. 7, s. 5.

CDSA

2012 to 2017

On March 13, 2012, s. 7 of the Controlled Drugs and Substances was amended as follows:

Production of substance

7 (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.

Punishment

(2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;
(a.1) if the subject matter of the offence is a substance included in Schedule II, other than cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment
(i) for a term of one year if the production is for the purpose of trafficking, or
(ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;
(b) if the subject matter of the offence is cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of
(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,
(ii) imprisonment for a term of nine months if the number of plants produced is less than 201 and more than five, the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply,
(iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,
(iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply,
(v) imprisonment for a term of two years if the number of plants produced is more than 500, or
(vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply;
(c) where the subject-matter of the offence is a substance included in Schedule III,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(d) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

; Factors (3) The following factors must be taken into account in applying paragraphs (2)(a) to (b):

(a) the person used real property that belongs to a third party in committing the offence;
(b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;
(c) the production constituted a potential public safety hazard in a residential area; or
(d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.


1996, c. 19, s. 7; 2012, c. 1, s. 41.

CDSA

1996 to 2012

Production of substance

7. (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.

Punishment

(2) Every person who contravenes subsection (1)

(a) where the subject-matter of the offence is a substance included in Schedule I or II, other than cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for life;
(b) where the subject-matter of the offence is cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years;
(c) where the subject-matter of the offence is a substance included in Schedule III,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(d) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

CDSA


Section 7.1

2017 to present

On May 18, 2017, s. 7.1 was amended to read as follows:

Possession, sale, etc., for use in production of or trafficking in substance

7.1 (1) No person shall possess, produce, sell, import or transport anything intending that it will be used

(a) to produce a controlled substance, unless the production of the controlled substance is lawfully authorized; or
(b) to traffic in a controlled substance.

; Punishment (2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, II, III or V,
(i) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months; and
(b) if the subject matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term of not more than three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term of not more than one year.

2011, c. 14, s. 1; 2017, c. 7, s. 6.

CDSA

2011 to 2017

Possession, etc., for use in production of or trafficking in substance

7.1 (1) No person shall possess, produce, sell or import anything knowing that it will be used to produce or traffic in a substance referred to in item 18 of Schedule I or subitem 1(9) of Schedule III.

Punishment

(2) Every person who contravenes subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years less a day.
2011, c. 14, s. 1.

CDSA

Cannabis-related Offences (Offence)

Overview

Template:OverviewCannabis

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

DIVISION 1
Criminal Activities
Possession

8 (1) Unless authorized under this Act, it is prohibited

(a) for an individual who is 18 years of age or older to possess, in a public place, cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 30 g of dried cannabis;
(b) for an individual who is 18 years of age or older to possess any cannabis that they know is illicit cannabis;
(c) for a young person to possess cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 5 g of dried cannabis;
(d) for an individual to possess, in a public place, one or more cannabis plants that are budding or flowering;
(e) for an individual to possess more than four cannabis plants that are not budding or flowering; or
(f) for an organization to possess cannabis.
Punishment

(2) Subject to section 51, every person that contravenes subsection (1)

(a) is guilty of an indictable offence and is liable
(i) in the case of an individual who is 18 years of age or older, to imprisonment for a term of not more than five years less a day,
(ii) in the case of a young person, to a youth sentence under the Youth Criminal Justice Act, or
(iii) in the case of an organization, to a fine in an amount that is in the discretion of the court; or
(b) is guilty of an offence punishable on summary conviction and is liable
(i) in the case of an individual who is 18 years of age or older, to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both,
(ii) in the case of a young person, to a youth sentence under the Youth Criminal Justice Act, or
(iii) in the case of an organization, to a fine of not more than $100,000.

CA

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XX of the Cannabis Act.

Proof of the Offence

Interpretation of the Offence

Definition of medical emergency

8.1 (1) For the purposes of this section, medical emergency means a physiological event induced by the introduction of a psychoactive substance into the body of a person that results in a life-threatening situation and in respect of which there are reasonable grounds to believe that the person requires emergency medical or law enforcement assistance.

Exemption — medical emergency

(2) No person who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from a medical emergency is to be charged or convicted of an offence under subsection 8(1) if the evidence in support of that offence was obtained or discovered as a result of that person having sought assist­ance or having remained at the scene.

Exemption — persons at the scene

(3) The exemption under subsection (2) also applies to any person, including the person suffering from the medical emergency, who is at the scene on the arrival of the emergency medical or law enforcement assistance.

Exemption — evidence

(4) No person who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from a medical emergency, or who is at the scene on the arrival of the assistance, is to be charged with an offence concerning a violation of any condition of a pre-trial release or probation order relating to an offence under subsection 8(1) if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.

Deeming

(5) Any condition of a person’s pre-trial release, probation order, conditional sentence or parole relating to an offence under subsection 8(1) that may be violated as a result of the person seeking emergency medical or law enforcement assistance for their, or another person’s, medical emergency, or as a result of having been at the scene on the arrival of the assistance, is deemed not to be violated.

CA


Offence Wording

Distribution

9 (1) Unless authorized under this Act, it is prohibited

(a) for an individual who is 18 years of age or older
(i) to distribute cannabis of one or more classes of cannabis the total amount of which is equivalent, as determined in accordance with Schedule 3, to more than 30 g of dried cannabis,
(ii) to distribute cannabis to an individual who is under 18 years of age,
(iii) to distribute cannabis to an organization, or
(iv) to distribute cannabis that they know is illicit cannabis;
(b) for a young person
(i) to distribute cannabis of one or more classes of cannabis the total amount of which is equivalent, as determined in accordance with Schedule 3, to more than 5 g of dried cannabis,
(ii) to distribute cannabis to an organization;
(c) for an individual
(i) to distribute one or more cannabis plants that are budding or flowering, or
(ii) to distribute more than four cannabis plants that are not budding or flowering; or
(d) for an organization to distribute cannabis.
Possession for purpose of distributing

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of distributing it contrary to subsection (1).

Defence — subparagraph (1)(a)(ii)

(3) It is not a defence to a charge arising out of the contravention of subparagraph (1)(a)(ii) that the accused believed that the individual referred to in that subparagraph was 18 years of age or older, unless the accused took reasonable steps to ascertain the individual’s age.

Defence — subsection (2)

(4) It is not a defence to a charge arising out of the contravention of subsection (2) of possessing cannabis for the purpose of distributing it to an individual referred to in subparagraph (1)(a)(ii) that the accused believed that the individual was 18 years of age or older, unless the accused took reasonable steps to ascertain the individual’s age.

Punishment

(5) Subject to section 51, every person that contravenes subsection (1) or (2)

(a) is guilty of an indictable offence and is liable
(i) in the case of an individual who is 18 years of age or older, to imprisonment for a term of not more than 14 years,
(ii) in the case of a young person, to a youth sentence under the Youth Criminal Justice Act, or
(iii) in the case of an organization, to a fine in an amount that is in the discretion of the court; or
(b) is guilty of an offence punishable on summary conviction and is liable
(i) in the case of an individual who is 18 years of age or older who contravenes any of subparagraphs (1)(a)(i), (iii) and (iv) and (c)(i) and (ii) — or subsection (2) other than by possessing cannabis for the purpose of distributing it contrary to subparagraph (1)(a)(ii) — to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both,
(ii) in the case of an individual who is 18 years of age or older who contravenes subparagraph (1)(a)(ii) — or subsection (2) if the possession was for the purpose of distribution contrary to subparagraph (1)(a)(ii) — to a fine of not more than $15,000 or imprisonment for a term of not more than 18 months, or to both,
(iii) in the case of a young person, to a youth sentence under the Youth Criminal Justice Act, or
(iv) in the case of an organization, to a fine of not more than $100,000.

CA

Selling

10 (1) Unless authorized under this Act, it is prohibited to sell cannabis, or any substance represented or held out to be cannabis, to

(a) an individual who is 18 years of age or older;
(b) an individual who is under 18 years of age; or
(c) an organization.
Possession for purpose of selling

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of selling it contrary to any of paragraphs (1)(a) to (c).

Defence — paragraph (1)(b)

(3) It is not a defence to a charge arising out of the contravention of paragraph (1)(b) that the accused believed that the individual referred to in that paragraph was 18 years of age or older, unless the accused took reasonable steps to ascertain the individual’s age.

Defence — subsection (2)

(4) It is not a defence to a charge arising out of the contravention of subsection (2) of possessing cannabis for the purpose of selling it contrary to paragraph (1)(b) that the accused believed that the individual referred to in that paragraph was 18 years of age or older, unless the accused took reasonable steps to ascertain the individual’s age.

Punishment

(5) Subject to section 51, every person that contravenes any of paragraphs (1)(a) to (c) or subsection (2)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years; or
(b) is guilty of an offence punishable on summary conviction and is liable
(i) in the case of an individual who contravenes paragraph (1)(a) or (c) — or subsection (2) other than by possessing cannabis for the purpose of selling it contrary to paragraph (1)(b) — to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both,
(ii) in the case of an individual who contravenes paragraph (1)(b) — or subsection (2) if the possession was for the purpose of selling contrary to paragraph (1)(b) — to a fine of not more than $15,000 or imprisonment for a term of not more than 18 months, or to both, or
(iii) in the case of an organization, to a fine of not more than $100,000.

CA

Importing and exporting

11 (1) Unless authorized under this Act, the importation or exportation of cannabis is prohibited.

Possession for purpose of exporting

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of exporting it.

Punishment

(3) Every person that contravenes subsection (1) or (2)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years; or

(b) is guilty of an offence punishable on summary conviction and is liable

(i) in the case of an individual, to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both, or

(ii) in the case of an organization, to a fine of not more than $300,000.

CA


Offence Wording

Production

12 (1) Unless authorized under this Act, it is prohibited

(a) to obtain or offer to obtain cannabis by any method or process, including by manufacturing, by synthesis or by using any means of altering the chemical or physical properties of cannabis; or
(b) to alter or offer to alter the chemical or physical properties of cannabis by the use of an organic solvent.
Authorized alteration

(2) An individual may alter the chemical or physical properties of any cannabis that they are not prohibited by this Act from possessing.

Definition of organic solvent

(3) In paragraph (1)(b), organic solvent means any organic compound that is explosive or highly or extremely flammable, including petroleum naphtha and compressed liquid hydrocarbons such as butane, isobutane, propane and propylene.

Cultivation, propagation and harvesting — 18 years of age or older

(4) Unless authorized under this Act, it is prohibited for an individual who is 18 years of age or older to cultivate, propagate or harvest, or to offer to cultivate, propagate or harvest,

(a) a cannabis plant that is from a seed or plant material that they know is illicit cannabis; or
(b) more than four cannabis plants at any one time in their dwelling-house.
Cultivation, propagation and harvesting — dwelling-house limit

(5) Unless authorized under this Act, if two or more individuals who are 18 years of age or older are ordinarily resident in the same dwelling-house, it is prohibited for any of those individuals to cultivate, propagate or harvest any cannabis plants if doing so results in there being more than four such plants being cultivated, propagated or harvested at any one time in the dwelling-house.

Cultivation, propagation and harvesting — 18 years of age or older — without authorization

(6) Unless authorized under this Act, it is prohibited for an individual who is 18 years of age or older

(a) to cultivate, propagate or harvest any cannabis plant at a place that is not their dwelling-house or to offer to do so; or
(b) to cultivate, propagate or harvest any living thing, other than a cannabis plant, from which cannabis may be extracted or otherwise obtained, or to offer to do so.
Cultivation, propagation and harvesting — young persons and organizations

(7) Unless authorized under this Act, it is prohibited for a young person or an organization to cultivate, propagate or harvest any cannabis plant or any other living thing from which cannabis may be extracted or otherwise obtained, or to offer to do any of those things.

Definition of dwelling-house

(8) For the purposes of this section, dwelling-house, in respect of an individual, means the dwelling-house where the individual is ordinarily resident and includes

(a) any land that is subjacent to it and the immediately contiguous land that is attributable to it, including a yard, garden or any similar land; and
(b) any building or structure on any land referred to in paragraph (a).
Punishment

(9) Subject to section 51, every individual who is 18 years of age or older who contravenes any of subsections (1), (4), (5) and (6) or any organization that contravenes subsection (1) or (7)

(a) is guilty of an indictable offence and is liable to a term of imprisonment of not more than 14 years; or
(b) is guilty of an offence punishable on summary conviction and is liable
(i) in the case of an individual, to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both, or
(ii) in the case of an organization, to a fine of not more than $100,000.
Punishment — young person

(10) Every young person who contravenes subsection (1) or (7) is guilty of an indictable offence, or an offence punishable on summary conviction, and is liable to a youth sentence under the Youth Criminal Justice Act.

Possession, etc., for use in production or distribution of illicit cannabis

13 (1) It is prohibited to possess, produce, sell, distribute or import anything with the intention that it will be used to produce, sell or distribute illicit cannabis.

Punishment

(2) Every person that contravenes subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than seven years; or
(b) is guilty of an offence punishable on summary conviction and is liable
(i) in the case of an individual, to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both, or
(ii) in the case of an organization, to a fine of not more than $100,000.

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Offence Wording

Use of young person

14 (1) It is prohibited to use the services of, or to involve, a young person in the commission of an offence under subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7) or 13(1).

Punishment

(2) Every person that contravenes subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years; or
(b) is guilty of an offence punishable on summary conviction and is liable
(i) in the case of an individual, to a fine of not more than $15,000 or imprisonment for a term of not more than 18 months, or to both, or
(ii) in the case of an organization, to a fine of not more than $100,000.

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Sentencing

15 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Division is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

Factors to take into consideration

(2) If an individual is convicted of a designated offence, the court imposing sentence on the individual must consider any relevant aggravating factors, including that the individual

(a) in relation to the commission of the offence,
(i) carried, used or threatened to use a weapon,
(ii) used or threatened to use violence, or
(iii) sold or distributed cannabis or possessed it for the purpose of sale or distribution, in or near a school, on or near school grounds or in or near any other public place usually frequented by young persons; and
(b) was previously convicted of a designated offence, as defined in subsection 2(1) of this Act, or a designated substance offence, as defined in subsection 2(1) of the Controlled Drugs and Substances Act.
Reasons

(3) If, in the case of an individual who is convicted of a designated offence, the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) and (b), but decides not to sentence the individual to imprisonment, the court must give reasons for that decision.

Drug treatment court program

(4) A court sentencing an individual who is convicted of an offence under this Division may delay sentencing to enable the individual

(a) to participate in a drug treatment court program approved by the Attorney General; or
(b) to attend a treatment program under subsection 720(2) of the Criminal Code.

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